Former employees should understand their options

Creative employee-side lawyers and their clients are continually challenging the notion that dismissed employees are receiving their due justice. Demanding more severance pay is only one of the dismissed employee’s options. The facts have not changed; rather the courts’ ability to remedy the alleged wrongs has expanded.

Bad faith damages: The most often awarded "add-on" damages are for an employer’s bad faith behavior at the time of an employee’s termination. Courts have a wide ranging ability to punish employers for bad faith treatment of employees based on the manner of dismissal. Most employment lawsuits allege these damages as a matter of course.

Inducements to resign:Employers who recruit employees based on promises or assurances are not immune from liability if they dismiss those employees shortly thereafter. U.S.-based Blue Pumpkin Software Inc.’s pursued sales all-star Melissa Antidormi but terminated her six months after she had resigned from her previous job, the court awarded her 10 months’ salary as damages. Her entitlement in the absence of inducement might have only been weeks.

Punitive damages:Awarded to deter employers from engaging in particularly harsh treatment of employees. While they are often claimed, only the most extraordinary behavior merits these awards. In a recent Ontario case, a former Honda employee with chronic fatigue syndrome received $100,000 when the judge found he was discriminated against and harassed. Aggravated damages: Awarded to compensate for intangible injuries, such as mental distress or where it can be shown there was a wrong committed that was separate from the dismissal itself and aggravated the employee’s harm as a result.

Future wage loss: In a recent column, I wrote about former RCMP constable who was awarded $950,000 as damages, including prospective wages lost, for prolonged harassment by her commanding officer that left her suffering from such severe depression she was unlikely to ever be able to work again. The British Columbia Court of Appeal agreed with the finding and the quantum.

Cost sanctions: Most often the victor’s legal fees are partially paid for by the losing party. But extraordinary circumstances permit a judge to deviate from this rule. In a recent Ontario case, the judge awarded the victorious employee substantial indemnity of his legal costs, implying such a result was necessary to punish the employer’s conduct.

With precedent-setting cases awarding these damages, as well as for invasion of privacy, intentional infliction of mental suffering, defamation, loss of reputation, breach of fiduciary duty and even negligence, garden variety dismissals now flirt with becoming significant lawsuits.